Virginia Law

A. Basic requirements. The department's determination of an applicant's eligibility for vocational rehabilitation services shall be based only on the following requirements: (i) a determination by qualified personnel that the applicant has a physical or mental impairment; (ii) a determination by qualified personnel that the applicant's physical or mental impairment constitutes or results in a substantial impediment to employment for the applicant; (iii) a presumption, in accordance with subsection B of this section, that the applicant can benefit in terms of an employment outcome from the provision of vocational rehabilitation services; and (iv) a determination by a qualified vocational rehabilitation counselor employed by the department that the applicant requires vocational rehabilitation services to prepare for, secure, retain, advance in, or regain employment consistent with the applicant's unique strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice.

B. Presumption of benefit. The department shall presume that an applicant who meets the basic eligibility requirements in clauses (i) and (ii) of subsection A of this section can benefit in terms of an employment outcome.

C. Presumption of eligibility for Social Security beneficiaries.

1. The department shall presume that any applicant who demonstrates proof of being determined eligible for Social Security benefits under Title II or Title XVI of the Social Security Act (i) meets the basic eligibility requirement in clauses (i) and (ii) of subsection A of this section and (ii) is considered an individual with a significant disability as defined in 22VAC30-20-10.

2. If an applicant for vocational rehabilitation services asserts that he is eligible for Social Security benefits under Title II or Title XVI of the Social Security Act (and, therefore, is presumed eligible for vocational rehabilitation services) but is unable to provide appropriate evidence, such as an award letter, to support this assertion, the department must verify the applicant's eligibility under Title II or Title XVI of the Social Security Act by contacting the Social Security Administration. This verification must be made within a reasonable period of time to enable the department to determine the applicant's eligibility for vocational rehabilitation services within 60 days of the individual submitting an application for services in accordance with 22VAC30-20-20.

D. Achievement of an employment outcome. Any eligible individual, including an individual whose eligibility for vocational rehabilitation services is based on the individual being eligible for Social Security benefits under Title II or Title XVI of the Social Security Act, must intend to achieve an employment outcome that is consistent with the individual's unique strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice.

1. The department shall be responsible for informing individuals, through its application process for vocational rehabilitation services, that individuals who receive services under the program must intend to achieve an employment outcome.

2. The applicant's completion of the application process for vocational rehabilitation services shall be sufficient evidence of the individual's intent to achieve an employment outcome, and no additional demonstration on the part of the applicant is required for purposes of satisfying this section.

E. Interpretation of entitlement. Nothing in this section shall be construed to create an entitlement to any vocational rehabilitation service.

F. Review and assessment of data for eligibility determination. Except as provided in subsection G of this section, the department shall base its determination of each of the basic eligibility requirements in subsection A of this section on:

1. A review and assessment of existing data, including counselor observations, education records, information provided by the individual or the individual's family, particularly information used by education officials, and determinations made by officials of other agencies; and

2. To the extent existing data do not describe the current functioning of the individual or are unavailable, insufficient, or inappropriate to make an eligibility determination, an assessment of additional data resulting from the provision of vocational rehabilitation services, including trial work experiences, assistive technology devices and services, personal assistance services, and any other support services that are necessary to determine whether an individual is eligible.

G. Trial work experience for individuals with significant disabilities. Prior to any determination that an individual with a disability is unable to benefit from vocational rehabilitation services in terms of an employment outcome because of the severity of that individual's disability, the department shall conduct an exploration of the individual's abilities, capabilities, and capacity to perform in a realistic work situation in accordance with 34 CFR 361.42 to determine whether or not there is clear and convincing evidence to support such a determination. The department shall develop a written plan to assess periodically the individual's abilities, capabilities, and capacity to perform in competitive integrated work situations through the use of trial work experiences, which must be provided in competitive integrated employment settings to the maximum extent possible, consistent with the informed choice and rehabilitation needs of the individual. The plan for trial work shall include:

1. Trial work experiences which may include:

a. Supported employment,

b. On-the-job training, and

c. Other experiences using realistic integrated work settings.

2. Appropriate supports to accommodate the needs of the individual during the trial work experiences that include:

a. Assistive technology devices and services, and

b. Personal assistance services.

3. Trial work experiences of sufficient variety and over a sufficient period of time for the department to determine there is:

a. Sufficient evidence to conclude that the individual can benefit from the provision of vocational rehabilitation services in terms of an employment outcome; or

b. Clear and convincing evidence that due to the severity of the individual's disability, the individual is incapable of benefitting from the provision of vocational rehabilitation services in terms of an employment outcome.